Opinion
2005-472 N C.
Decided March 27, 2006.
Appeal from orders of the District Court of Nassau County, First District (Vito M. DeStefano, J.), entered February 4, 2005 and March 18, 2005. The order entered February 4, 2005 denied tenant's motion to vacate a final judgment and warrant, and to dismiss the nonpayment summary proceeding. The order entered March 8, 2005, insofar as appealed from, upon in effect granting tenant's motion to reargue, adhered to the prior decision.
Appeal from order entered February 4, 2005 dismissed as superseded.
Order entered March 18, 2005, insofar as appealed from, reversed without costs and, upon reargument, tenant's motion to vacate the final judgment and warrant, and to dismiss the petition is granted.
PRESENT:: RUDOLPH, P.J., TANENBAUM and LIPPMAN, JJ
In this nonpayment proceeding, landlord, tenant's father, seeks to recover possession of a cooperative apartment and rent arrears. Tenant is in possession of the apartment pursuant to an eight-year lease which was entered into as part of a settlement of an action by tenant against her father grounded on a claim of equitable ownership. On November 16, 2004, the parties stipulated that a final judgment would be entered awarding landlord possession and the sum of $3,302.93, with execution of the warrant stayed until December 7, 2004. In the event of full payment, the proceeding was to be withdrawn. Although the form stipulation's pre-printed language stated that the $3,302.93 represented "rental arrears consisting of rent, attorney's fees and late fees," the stipulation set forth no breakdown of the $3,302.93 amount. On December 15, 2004, the Nassau County Department of Social Services (DSS) offered to pay landlord $3,612.79, which amount included all arrears in rent through December 2004 but not legal fees.
However, landlord declined DSS' offer. On January 3, 2005, tenant paid the January maintenance of $579.93 to the cooperative.
In the absence of a clear breakdown of the amount agreed to under the terms of the stipulation, we decline, under all the circumstances presented, to look beyond said terms and speculate as to what was intended. In our view, under the unique circumstances presented here, DSS' offer on December 15, 2004 of an amount in excess of the stipulated amount constituted substantial compliance with the stipulation ( see Malvin v. Schwartz, 65 AD2d 769, affd 48 NY2d 693; Moshe Realty LLC v. Grant, 10 Misc 3d 127 [A], 2005 NY Slip Op 51899[U] [App Term, 2d 11th Jud Dists]). Accordingly, we grant tenant's motion to vacate the final judgment and warrant, and to dismiss the petition. The sum of $3,612.79, deposited by tenant into the District Court pursuant to an order of this court, may be released to landlord.
We note that the determination herein is solely for the purpose of this summary proceeding and that nothing herein is intended to preclude landlord from commencing a plenary action to recover attorney's fees if, in fact, such fees were included in the stipulation.
Rudolph, P.J., Tanenbaum and Lippman, JJ., concur.